China’s intelligence law and the country’s future intelligence competitions

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China’s National Intelligence Law codifies existing practice and adds significant new principles. The law establishes a clear divide between civilian and military security functions. It establishes working groups on intelligence and national security on a geographic and functional basis. In establishing legal principles for the operation of state security agencies, the law makes it clear that the agencies support Party rule, and the economic and social interests of the state. Citizens have a duty to cooperate with state intelligence and security agencies.

On 28 June 2017, the National People’s Congress passed the National Intelligence Law and outlined the first official authorisation of intelligence in the People’s Republic of China (PRC). Unlike its Western counterparts, the intelligence law does not specifically name China’s intelligence services. Instead, the law describes the “national intelligence work institutions” as the “intelligence organs” of the state security and public security institutions, as well as military intelligence organisations. The law’s vague definition of intelligence in the opening articles suggests intelligence includes both information collected and activities conducted in support of comprehensive state security. The national intelligence work institutions provide intelligence information to inform decision-making and undefined capabilities for action to support state security.

The Intelligence Law contains a mix of continuity and change in how China protects state security and conducts intelligence. Like much of the past state security legislation,Footnote 67 the law makes explicit what has long been done in practice. The most significant change relates to the institutional arrangements for intelligence work and empowering “central state security leading bodies” with setting intelligence policy, providing guidance, and coordinating activities. The results, however, need to be watched to understand how the military intelligence system, the state and public security organs, and the Chinese Communist Party’s (CCP) united front organs come together (or not).

Content and implications of the intelligence law

The intelligence law highlights one important continuing trend within the state security legal structure put in place since 2014: everyone is responsible for state security. As long as national intelligence institutions are operating within their proper authorities, they may, according to Article 14, “request relevant organs, organisations, and citizens provide necessary support, assistance, and cooperation”. According to Article 16, intelligence officials “may enter relevant restricted areas and venues; may learn from and question relevant institutions, organisations, and individuals; and may read or collect relevant files, materials or items”. China’s intelligence services may lack the political power of the Soviet-era KGB, but they do not lack for authority relative to all but the CCP’s senior leadership and core institutions.

Beijing regularly has sought to punish those who damage the government’s reputation, unveil the Party’s internal politics, or otherwise act against its interests. This punishment has taken many forms, ranging from the extra-legal renditions of Hong Kong booksellers to the denial of visas to enter China. Article 11Footnote 68 of the intelligence law dictates that the intelligence services will work to collect and collate the information base that support the identification of problematic individuals and institutions, as well as prevent and punish them for their work. One can read this in a narrow context in which only terrorists, spies and dissidents become targets. However, the detailed Implementing Regulations for the Counterespionage Law (December 2017) suggest a more expansive interpretation. For example, these regulations include “fabricating or distorting facts, publishing or disseminating words or information that endanger state security” as an espionage-related offence, particularly if that person can be tied to an intelligence organisation or “hostile organisation” as designated by the Ministry of Public Security (MPS) or the Ministry of State Security (MSS). “Fabricating or distorting facts”, at least as described by China’s official spokespeople and media, includes describing China’s interference in foreign countries, discussing its human rights record, and anything related to Chinese territorial claims.

The most important consistency contained in the recent intelligence law is the divide between civilian and military intelligence, which closes Article 3: “The Central Military Commission uniformly leads and organises military intelligence efforts”. After explaining how the leading central state-security organs will guide China’s intelligence efforts, this passage clearly distinguishes the People’s Liberation Army’s (PLA) intelligence organs from their public and state security counterparts. No one outside the Central Military Commission (CMC) will direct military intelligence, and the PLA’s intelligence organs will report only to whom the CMC directs them. An early draft of the law implied this authority might be diffused, but the law’s final text stamped that language out. Because of their authority, how the CMC members decide PLA intelligence should cooperate (or not) with other decision-making bodies will decide whether China possesses a cohesive national intelligence apparatus.

The one piece of clear institutional change is the likely creation of an Intelligence Working Group operating below the Central State Security Commission (CSSC). This working group probably would be mirrored in the provincial and local State Security Leading Small Groups. Each level of what the law calls the “state security leadership bodies” has a working group for each of Xi Jinping’s eleven areas of comprehensive securityFootnote 69 , plus an additional working group for each of the recent state security-related laws. The CSSC and its Intelligence Working Group would be responsible for the Article 3 responsibilitiesFootnote 70 related to formulating intelligence policy, establishing coordination mechanisms and a division of labour, as well as planning national intelligence efforts. The working groups at sub-national levels most likely would focus on the coordination and planning functions outlined in the law, leaving intelligence policy and overall direction to the central authorities.

The CSSC may have some authority to influence the PLA’s intelligence activities. Although the law stipulates the CMC will “uniformly lead and organise” military intelligence, it also gives the CSSC distinct authorities for policy guidance, planning, and coordination over the “national intelligence work institutions.” What this means in practice has not been defined publicly. The PLA has resisted encroachment on its authority by civilian institutions, and the military’s membership on the CSSC remains unknown.

Notably absent from these institutional developments are the united front organs in both the Party and the PLA. Both the United Front Work Department and the Liaison Bureau of the PLA’s Political Work Department handle overseas Chinese, Taiwanese and other outsiders in ways that look like running a recruited agent. The united front system may have an action-oriented agenda–extending the Party’s reach and managing social groups–but its work necessarily brings its officials opportunities to acquire intelligence information. A state law would not mention Party organisations, but the well-worn “other relevant departments” is noticeably absent from the Intelligence Law. This is another area to explore for understanding how China integrates intelligence information and exploits the opportunities of its global reach.

Since 2014, Chinese and Taiwanese interlocutors have expected some undefined reform of the MSS. Overseas Chinese-language press suggested this reform might even lead to the splitting of the MSS into a foreign intelligence service and domestic counterespionage service. Last summer, knowledgeable Chinese interlocutors said the Intelligence Law presaged reform to the ministry, but could not or would not describe what such reform would entail. The distinction drawn in the law’s language between the MSS and its intelligence organs suggests the Chinese government draws clearer distinctions between state security elements that are missed in Western characterisations of the ministry as China’s civilian intelligence and counterespionage service. There may be a natural division of the MSS that makes sense, based on how different parts of the ministry contribute to their respective intelligence, state security, united front, cybersecurity, etc., policy systems. If this is the case, the overseas Chinese-language media may have got the substance of possible reforms correct, but not the timing.

The law’s text offers little new insight into Chinese intelligence operations. The law provides official sanction for the intelligence services to do things long observed in their activities: coopting officials in other government agencies; compelling cooperation from PRC citizens; commandeering transportation and lodging for operational support; seeking exemptions from customs inspections; and establishing ad hoc operational facilities. The law also states that national intelligence institutions must return the facilities or equipment in their original state or compensate the owner for damage.

The Intelligence Law possibly foreshadows the emergence of more sophisticated agent-handling at the end of a case or operation. The termination phase at the end of the agent-recruitment cycle is the most opaque to open sources. It is not clear whether this opacity is a natural outgrowth of clandestine work or because this phase is absent from Chinese intelligence operations. There is not a single public example of China’s services dropping an unproductive agent. Nor is there an example of China’s service helping an agent evade prosecution, either through exfiltration or providing practical advice.Footnote 71 Usually, agents are left to their own devices, and their case officer downplays or ignores the risks. The following passages from the Intelligence Law, however, suggest China’s intelligence organisations will be more aggressive or thoughtful in taking care of an agent and his/her family at the end of an operation:

Article 23: When the personal safety of the staffs of national intelligence work institutions, personnel who have established cooperative relationships with national intelligence work institutions, or their close relatives, is threatened as a result of assisting national intelligence work, the relevant state departments shall employ the necessary measures to protect or rescue them.

Article 24: The state shall arrange appropriate placements for persons who have made contributions to national intelligence efforts and require a placement.

Article 25: Corresponding bereavement benefits and special treatment are given in accordance with relevant national provisions, to those who are disabled, give their lives, or die as a result of carrying out, supporting, assisting, or cooperating with national intelligence efforts.

Although the language of the law is no guarantee, the law does enshrine the authority and power to assist those who have helped Chinese intelligence. This is not insignificant, given the often callous disregard for Chinese agents who are in danger. This may be the kind of reassurance Chinese agents have requested or the reputation of Chinese intelligence officers may have been damaged as a result of their previous operations. Watching how China’s intelligence services handle the end of an operation—whether generating exfiltration options, finding an overseas job for the agent, providing a pension—will be an important area to watch.

Future of China’s intelligence competitions

The state security legislation since 2014 re-emphasises the scope and scale of Chinese intelligence operations that always posed a problem to foreign intelligence and security services. The resources that Beijing can bring together, however, are much more substantial and integrate human with technical components. Those countries engaged in an intelligence competition with China will need to adjust to some of the new realities of conducting operations. Below are a few of the hallmarks of the new era:

Social mobilisation for counter-espionage. The CCP has never relied on wholly technical means for surveillance. National Security Education Day (15 April) and associated propaganda complement the legal enjoinders in the state security legislation to participate actively in watching for spies. Experiments with technical mechanisms for popular participation date at least to 2011, when the Liaoning State Security Department announced a number to which someone could text state security tips.

Global reach of Chinese companies. Compelling corporate cooperation significantly expanded Chinese intelligence organisations’ domestic coverage. Huawei was not yet a global company. Xiaomi did not exist. Internet-of-Things was a vision rather than an emerging convenience. Both the human and technical reach of Chinese companies now give the intelligence services opportunities to gain direct access to many governments within the developing world as well as many Allied and European countries with inroads into other societies.

Explicit intelligence role in supporting economic growth. The CCP has never relinquished the claim that the Party must control the commanding heights of the economy. The new laws, however, signal the CCP will go further rather than reforming away from government intervention. The State Security Law (2015) stipulates economic security should be the foundation of the country’s security. The new intelligence law states the intelligence services will support economic and social interests. Although the latter part means Party control, the former suggests the intelligence services will continue to play their role in economic espionage in spite of the agreements Xi Jinping inked with the United States, Germany and Canada.

The state security legislation passed as part of Xi Jinping’s effort to transform the practice of national/state security in China in accordance with his ‘comprehensive security concept’ includes the following: Counter-espionage Law (2014), National/State Security Law (2015), Counterterrorism Law (2015), Foreign Non-Governmental Organisation Law (2016), and the Cybersecurity Law (2016).

Article 11: “National intelligence work institutions shall lawfully collect and handle intelligence related to foreign institutions, organisations or individuals carrying out, directing or funding foreign or domestic institutions, organisations, or individuals colluding to carry out, conduct activities endangering the national security and interests of the People's Republic of China; so as to provide intelligence references and bases for preventing, stopping, and punishing the above conduct.”

Article 3: “The State is to establish and complete a national intelligence system that is centralised and united, that has a coordinated division of labour, and is scientific and highly effective. The central, national-security leadership bodies are to carry out unified leadership of national intelligence efforts, formulate directives and policies for national intelligence work, plan the overall development of national intelligence efforts, establish and complete coordination mechanisms for national intelligence efforts, perform the overall coordination of national intelligence efforts in various fields, and research and decide on major matters in national intelligence efforts.”

The Larry Wu-Tai Chin case—run by Chinese intelligence between the late 1940s and 1985—may be the only example where agent exfiltration might have been a possibility and an explicit arrangement made with that agent for what happens after his death or capture. FBI agents have told reporters that there was an exfiltration plan involving a Chinese intelligence officer or co-optee. This person was a Catholic priest based in New York who reportedly disappeared after Chin’s arrest and trial. According to the jail logs, an MSS officer visited Chin in jail after his conviction. That night, Chin committed suicide in his jail cell.